by The most troubling aspect of Judge Walker’s opinion may be paragraph 77 of his factual findings: “Religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians.” Paragraph 77 lists 18 findings in support of this proposition, including 77(i) – (p), which identify statements by Catholic and Orthodox Church bodies, as well as by various protestant churches, concerning homosexual practice and sin.
This section is troubling for several reasons. First, it highlights some ways in which the Church has acted wrongly towards homosexuals in the rhetoric and tactics that often have been employed in the culture wars. Indeed, it does not even scratch the surface concerning a deplorable history of violence and hatred for which the Church ought to sincerely repent. Contrary to Judge Walker’s conclusions, however, I don’t believe the harm necessarily inheres in the category of “sin.”
The opinion surrpetitiously establishes a conflict between faith and science by suggesting that a social-scientific definition of “harm” must trump any theological concept of harm. Judge Walker, it seems to me, clearly wishes to pour out moral approbation on Christianity for employing the category of “sin” in private sexual matters. To do so, he assumes a metaphysical stance that waves away any concerns beyond the here and now. But when Christian churches issue pastoral statements about sin, they assume an anthropology that extends beyond the world we presently inhabit. The very concept of “sin” implies a metaphysic in which the “harms” and benefits people experience, or may in the future experience, extend far beyond what seems evident in this life. The deepest and most honest Christian response to arguments about sin and “harm” must be that the short and temporary wound caused by a rebuke of sin yields eternal good.
A related concern is that Judge Walker mischaracterizes Christian sexual ethics by characterizing “sin” as only a sort of legalistic, negative, irrational divine command. The Christian tradition, however, is rich with ethical and theological reflection about human sexuality and the family, which extends far beyond a blind emphasis on rules. Judge Walker seems ignorant of the way in which Christian sexual ethics are situated in the basic doctrines of the difference and co-inherence of the Trinity, the gift of the good and generative creation, and the establishment of a unique community of worship.
Of course, we cannot expect a federal district court judge to involve himself or herself in such deep theological questions. And here, I would suggest that the lobbying and litigation tactics of the Prop 8 proponents were devastating for Christian mission and witness. Precisely because the secular law cannot deal in theology, arguments in support of Prop 8 had to be made on supposedly “neutral,” secular and “scientific” grounds. The rich Christian theology and ethic of family and sexuality had to be compressed into an unrecognizable lump of consequentialist mush. The result was all too familiar: religion loses when it compromises its metaphysical claims.
My initial feeling after reading Judge Walker’s opinion, then, is a stronger belief in Hauerwas’ axiom that “the Church must be the Church.” Our beliefs and ethics are rooted in metaphysical claims that are revealed more than they are empirically self-evident. We need to learn to live as an ekklesia in a culture that does not share most of our metaphysical presuppositions. And we need to learn how to live with and love others who do not share our presuppositions. Grand scale legislative, lobbying and litigation tactics will always result in the construction of public arguments that undermine our most important truth claims.
I have many more questions than opinions formed on this matter. Forgive my sharing my confusion with you.
There are many strange “thought crimes” responses coming from the reading of this decision. I am not a lawyer, but there have been several discussions on this topic I’ve followed which elude to the idea that religious conviction and in fact marriage itself (as traditionally constructed) is harmful to the minority in this case.
Society may certainly concern itself with motive in matters which are already criminal. But calling theological, philosophical or anthropological positions “harmful” sounds down-right ominous.
The quote you open your article with is disturbing. How is this not the government restricting your freedom of religion? Isn’t the logical successor to this regulation against religious teaching which violates the judicial anthropology as informed by progressive scientism?
What if I wanted to start a political movement to amend the constitution such that short persons cannot vote? Surely denying the right for a short person to vote is currently a violation of someone’s civil rights. It is an objective “harm”.
But is the movement to change the constitution “harm”? Is the political process itself now potentially criminal?
If Christians are going to participate in secular culture, we need to know how to speak the secular language. Christian moral arguments can be put in secular or public terms, but Walker and his ilk seem to want morality to not factor into the equation at all. They want a separation of not just church ans state, but a separation of morality and state. Never mind that equal protections and due process are themselves moral notions.
Is Walker Gay? First of all. Second Marriage was define and has been defined for thousands
of years. This is NOT civil rights or discrimination. Just because the far left says it is. They
falsely use civil rights and discrimination only because it carries a big stick in court. It is a moral issue. Ninety-two % of the people in America who are NOT gay, just refuse to be marginalized by the 8 % who are gay. Gays are accusatory, judgmental when they accuse
people who don’t agree with their sick life style. And are haters them selves but are unaccountable when they spread their propaganda and hate by calling us bigots. How
hypocritical can you get. They talk condescendingly about Christian, yet when when it
comes to Muslims like I am. They (gays )keep quiet because they are afraid of us. All I can say is try that with us some time.
I’m away from my computer and trying to comment with my phone so I have.to be brief. Mike the first paragraph of my post is as important as the rest. I don’t think the us vs. Them posture is helpful or from my Christian perspective compatible with the example of Jesus. Any response has to eschew anger even as we clarify and offer reasons for our own views.
1) I do wish you would stop using “Christian” when you mean “Some Christians”. For example, UCC and Episcopal churches, among others, recognize and celebrate same sex marriage in many venues. They have a well-developed theology on this. Which makes the important point: denying civil marriage equality is directly impinging on their religious freedom. Under our constitutional system, you don’t get to enshrine one religious viewpoint in civil law.
If it were possible to do so, then under Roman Catholic preference, divorce would be illegal. Hmmmm, I don’t see the Roman Catholics attempting to pass a proposition outlawing divorce, which demonstrably does far more harm that same sex marriage. Hypocrisy, much?
2) Judge Walker’s sexuality is not relevant, unless you believe that only straight Christian men can be objective. Using that logic, the Christians on the US Supreme Court should have recused themselves from hearing the recent case on “Christian LEgal Society vs Hastings School of Law.” Justic Ginsberg would have had to recuse herself from the Lily Ledbetter case. I really don’t think you want to go there, do you?
3) The US population is split about 50-50 on whether or not to recognize GLBT couples, and given the acceptance of the young, it is only a matter of time before the population swings that way. The conservative argument for marriage is in favor of demanding the same standards of fidelity and faithfulness of GLBT couples as straight couples. On the other hand, some of the most vehement opponents of marriage equality are guilty of a considerable amount of serial polygamy. Funny, there’s no outcry or concern over that.
4) Traditionally, marriage is a contract between two men over property, that includes woman-as-property. Traditionally, in many cultures, marriage is polygamous. Traditionally, marriage was limited to people of one race/caste/tribe. Traditionally, marriage was forbidden to slaves. One should be careful before invoking tradition.
5) The defense in the Prop8 case were unable to provide any legitimate evidence that civil marriage between gay people has any deleterious effects on straight people. Massachusetts, for example, has one of the lowest divorce rates and lowest rates of teen pregnancy in the country.
6) The lobbying and litigation tactics of the Prop 8 proponents were devastating for Christian mission and witness Ya think? There has been a veritable flood of horrified people from our local Roman Catholic churches in the wake of prop8 (including my wife). Fortunately, they have found The Episcopal Church Welcomes You.
7) You may disapprove of same sex marriage just as you disapprove of divorce. NO one is asking you to marry a gay person, or celebrate such marriages in your church. You are merely asked to live in a civil society accepting that civil rights accrue to people of whom you disapprove, whether they are gay, atheists, immigrants, or people like Newt Gingrich who have married three times in rather dishonorable circumstances.
Oh, right, he’s a Catholic.
IT – thanks for the comment but you are attributing to me things I didn’t say (I said nothing about the Judge’s sexuality for example) and you seem to have missed the point of my post, which was to argue against overreaching of this sort.
Sorry, part of my response was to “Mike” and I should have pointed that out.
I would also respond @David that no one is saying morality doesn’t belong in the civil square. Morality is not the exclusive realm of the religious. Atheists are not running around shooting, raping and pillaging (In fact, atheists are more likely than Christians to disapprove of torture. Go figure.)
As to the article: You really ought to highlight this And we need to learn how to live with and love others who do not share our presuppositions with some concrete suggestions. And perhaps some apologies.
What do you do about the fallout from the number of self-defined “Christians” who screamed curses and the most hideous things in the run up to Prop8…. the casual vandalism of cars….the pure vicious bile that dripped from the lips of a priest in a sermon my (then Roman Catholic) wife heard on the day we married, reducing her to tears…all of which we experienced. Then there are the sobbing, deeply wounded people whom this nasty, lying campaign has driven from church (only a handful of whom have found a safe harbor elsewhere).
The time for your article was 2 years ago, surely.
And meanwhile: it would still be appropriate to admit that you do not speak for all Christians.
My concern IT is that the text of the judge’s decision attributes harm necessarily to a moral position, not action. (I never claimed atheists were immoral or less moral than Christians.) I’m concerned that my religious position (or someone’s atheist position) on any number of things, might be considered necessarily harmful to others under the law.
Divorce was brought up. I am against divorce every bit as much as I’m against same-sex marriage. I would love to lobby for divorce to be much more difficult-to-impossible to obtain. As I view divorce as a sin and as I am divorced, I’ve confessed mine as such to God before my priest. Am I doing harm to divorced persons (including myself) by holding this position?
This judge seems to be saying that I am. That the only motivation for my position is bigotry to the point of legal invalidity (if not actual criminality). That’s an ignorant position. That is, the judge is completely uninformed as to the anthropology (which is in turn informed by Christology) of the Church (I’m Orthodox, but we’re similar to the Catholic Church on this point).
It is not optional for me to change a particular conclusion of that thinking, because it is a single point derived from a larger world view. In some sense, this has nothing to do with what I think about GLBT individuals. I did not start with a prejudice and then work backwards to a comprehensive world view that justifies my position. I started with the world view than necessarily requires me to take a certain position on divorce, same-sex marriage and a whole host of other things.
It is my assumption that this isn’t over. I do not intend any scare-mongering hysterics here. However, I suspect that those who equate this to civil rights issues surrounding race will claim that Churches who teach that homosexual acts are sin and refuse to honor same-sex marriages will be further attacked in the coming years as if they were refusing to admit folks of different races.
What would you justifiably say society has the right to refuse an organization that both exhibits, preaches and practices racism? If you equate the GLBT cause in the same vein, what would be just against a Church which discriminates against them?
I’m not familiar with the state of the KKK and other organizations like it in America (you hear about them getting permits to march etc, but I don’t know how much the law effectively harasses them), but I’m being told that my Church is effectively the KKK by this judge.
In order to drive his point home; Walker has equated what you do with who you are. Walker is basing his findings on the 1998 Romer v case because it is settled law, but he conveniently ignores the 2006 Nebraska ruling that:
1) There is no constitutional right to same sex marriage
2) Procreation is a rational basis
Same sex enthusiasts appealed this ruling to SCOTUS, but were turned away at the door for want of a constitutional question. If Romer v is over-riding precedence as Walker contends is stands to reason that SCOTUS would have over-turned Nebraska on appeal, but they did not.
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